Outrage was expressed by parents in Southampton earlier this year after finding out that children were being given the contraceptive implant in schools without their consent, as part of a wider government initiative to reduce the number of teenage pregnancies. The contraceptive implant works to prevent pregnancy by releasing the hormone progesterone into the bloodstream from a 4cm rod which is inserted into the arm and is effective for up to three years. The contraceptive injection is effective for three months.

The issue of under-16 year olds’ competency to consent to contraceptive advice and treatment without parental consent was settled in the case of Gillick v Wisbech and West Norfolk Health Authority and another [1985] 3 All ER 402, after Victoria Gillick took legal action against the Department of Health and Social Security in response to their 1980 circular on family planning which endorsed confidential contraceptive advice and treatment for under-16 year olds.

Despite the legal settlement of this issue 27 years ago, under-16 year olds’ access to contraceptive treatment without parental consent remains controversial, particularly in light of the advancement in medical technology which offers a wider variety of treatments to females, such as the implant and contraceptive injection, which were not available at the time of Gillick.

Throughout the 1980s, Victoria Gillick, a pro-life campaigner, undertook a legal battle. Her initial action was sparked by the 1980DHSS circular (an update of the 1974 DHSS circular), which allowed doctors to provide contraceptive advice and treatment to under-16 year old girls – they were entitled to doctor-patient confidentiality and in need of protection from risks such as pregnancy and STDs. Victoria Gillick contacted her local Area Health Authority seeking assurance that none of her five daughters would be provided the contraceptive pill without parental consent. When this was not forthcoming she took legal action to challenge the provisions of the circular.

At first instance, she sought a declaration that the guidance was unlawful and adversely affected parental rights and duties. Her initial failure in the lower court was followed by success in the Court of Appeal where the Lord Justices unanimously agreed that the guidance in the circular was unlawful; hence doctors should not be able to give contraceptive advice and treatment to under-16 year olds without parental consent, except in cases of emergency.

The DHSS appealed to the House of Lords where they succeeded with a 3:2 majority. Lords Fraser, Scarman and Bridge accepted that if an under-16 year old was competent enough to understand the issues involved and the doctor believed it was in her best interests, then it was lawful for a doctor to provide contraceptive advice and treatment without parental consent. Lord Fraser’s guidelines gave rise to the ‘Gillick competence’ test, often referred to as ‘Fraser competence’, which is now widely used to assess issues of competence of under-16 year old children (including with regard medical treatment). Gillick was the first legal recognition of the rights of under-16 year olds to give effective consent and remains the leading case in this area. The Gillick principles were reaffirmed in 2006 in Axon, R (on the application of) v Secretary of State for Health [2006] EWHC 37; see also coverage by the BBC.

This is a guest post by Emma Nottingham of the Law School, University of Southampton.

The document was substantially rewritten from the previous edition of 2006 by HEAL member Professor Anneke Lucassen and Alison Hall from the PHG Foundation (see http://www.phgfoundation.org/)

It was a privilege to contribute a foreword to the document, which provides guidance on acceptable practice, illustrates it with case studies and contains some useful flow charts to assist clinicians in making decisions.

Reliable information is the keystone to good practice in all healthcare but the distinguishing feature in clinical genetics is that much of this information affects not only the individual patient but also other family members. The normal principles of confidentiality and data protection are not so straightforward in this context. Clinical genetics services will often want to use the information they gather when providing advice to one person to assist another family member but may be unsure whether this is acceptable.

Where a patient agrees to confidential information about them being used in this way, there is little cause for concern. It may even be appropriate to encourage those who are hesitant to permit this to be altruistic in the expression of their ‘genetic solidarity’ with their relatives. Consideration also needs to be given to whether there are circumstances in which it may be legitimate to use such information even without consent. This will not necessarily mean disclosing it to anyone as it may be helpful merely to use it when assessing the risks of genetic disease to another family member.

Article 8 of the European Convention on Human Rights recognises that people’s right to privacy may be outweighed by the rights and freedoms of others, provided always that it is proportional to do so. This is a difficult balancing act and the new guidance aims to help professionals strike the appropriate balance.

It is an important document that deserves to be well read.

Jonathan Montgomery is Chair of the Human Genetics Commission but this post represents a personal view, not the position of the Commission and is based on his Foreword to the newly published document.

On 7 May, Jonathan Montgomery gave the inaugural HEAL annual lecture on 'Bioethics As A Governance Practice'. It was a stimulating and engaging lecture which has set the standard for HEAL's annual lecture series.